Madras High Court
S.Dakshina vs Chinnaponnu on 17 September, 2012
Author: G. Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.09.2012 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.453 of 2006 S.Dakshina .. Appellant vs. 1. Chinnaponnu 2. Nagappan 3. Annappan 4. Kanaga 5. Devaraj .. Respondents This Appeal is focussed as against the judgment and decree passed by the learned Additional Subordinate Judge in A.S.No.42 of 2005 dated 21.11.2005, confirming the judgment and decree passed by the learned District Munsif cum Judicial Magistrate, Thirukallukundram in O.S.No.284 of 1996 dated 28.01.2005. For appellant : Mr.C.Jagadish For Respondents : Mrs.R.Gowri JUDGMENT
This appeal is focussed at the instance of the original plaintiff animadverting upon the judgment and decree dated 21.11.2005 passed in A.S.No.42 of 2005 by the learned Additional Subordinate Judge, Chengalpattu, confirming the judgment and decree passed by the learned District Munsif cum Judicial Magistrate, Thirukallukundram in O.S.No.284 of 1996 dated 28.01.2005.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
(a) The appellant in the Second Appeal as plaintiff, filed the suit seeking the following reliefs:
"(i) For declaration of plaintiffs title to B schedule property and consequential relief of vacant possession of the same;
(ii) For declaration of plaintiffs title to the C schedule property and for consequential relief of permanent injunction restraining the defendants, their men, agents and servants from in any way interfering with the plaintiffs peaceful possession and enjoyment of the same ; and
(iii) For costs." (Extracted as such)
(b) Precisely and pithily, the gist and kernel of the averments as found set out in the plaint would run thus:
The 'A' scheduled property which is comprised of the 'B' and 'C' scheduled properties, originally belonged to one Chinnammal, Wife of Moorthy and her sons and daughters. The plaintiff purchased the entire 'A' scheduled property, as a grama natham vacant site, vide the sale deed dated 18.10.1994. The rectification deed also emerged as an adjunct to the earlier sale deed referred to supra, whereby, it was clarified that out of the total extent of 11 cents, 3 cents happened to be the Government grama natham earlier, which was given to the said Moorthy by virtue of a patta given by the Government, and the remaining extent originally belonged to Moorthy by virtue of he having purchased as per sale deed dated 18.10.1994, which constituted the antecedent title deed to the sale deed dated 18.10.1994. While so, the first defendant/Chinnaponnu who happened to be the wife of Rajendran, one of the vendors of the plaintiff in the sale deed dated 18.10.1994, started creating trouble and she has been in occupation and enjoyment of the 'B' scheduled property, relating to which possession is sought for and in the remaining extent she is attempting to trespass and that has been described as the 'C' scheduled property, relating to which injunction is sought for. As such, according to the plaintiff, the suit was a comprehensive one filed as against the first defendant and also as against D2 to D5, the villagers, who were actively aiding and abetting Chinnaponnu who resisted the lawful claim of the plaintiff.
(c) D2 to D5 remained ex parte. D1 filed the written statement denying and refuting, challenging and impugning the averments/allegations in the plaint, the gist and kernel of them would run thus:
The 'A' scheduled property happened to be the ancestral property in the hands of Moorthy, whereupon, D1's son born to Rajendran, being the grandson of Moorthy, is entitled to a moiety in it and hence, any sale effected by the other co-sharers excluding Kamalakannan, would not be binding on him.
Accordingly, she would pray for the dismissal of the suit.
(d) Whereupon issues were framed.
(3) On the plaintiffs' side, one Subramani was examined as P.W.1 and Exs.A1 to A9 were marked. The first defendant-Chinnaponnu examined herself as D.W.1 along with D.W.2 Ramakrishna Pillai and Exs.B1 to B4 were marked.
4. Ultimately the trial Court dismissed the suit as against which the appeal was filed by the plaintiff, for nothing but to be dismissed, confirming the judgment and decree of the trial Court.
5. Challenging and impugning the judgment and decree of both the Courts below, this Second Appeal has been focussed on various grounds.
6. The learned counsel for the plaintiff placing reliance on the grounds of appeal would put forth and set forth his arguments, which could pithily and precisely be set out thus:
(a) Both the Courts below miserably failed to understand the concept 'ancestral property', but simply dismissed the plea believing the written statement of the first defendant.
(b) In fact, in the sale deed effected in favour of the plaintiff, D1's son has been cited as eo nomine party and his father Rajendran represented him also by way of abundant caution.
(c) Consequent upon the death of Moorthy, his Class I heirs, namely his wife and children, who happened to be the legal heirs, sold the suit property. In such a case, the question of Kamalakkan, the grandson of Moorthy getting any right directly in the suit property, is a well neigh impossibility.
(d) The factum of the suit property happened to be the self acquired property of Moorthy is well established by virtue of Exs.A2 and A4.
(e) No doubt, simply because in the rectification deed Ex.A5, there is one reference to the fact that the said three cents was described as the ancestral property, that would not clothe D1 or Kamalakannan with any right over the property, as though the suit property was an ancestral property.
(f) Ex.A4 would explain and expound by way of dispelling any doubt regarding the nature of the property, as it is the Government patta in favour of Moorthy relating to the said 3 cents of land. If it happened to be the ancestral property, then the Government would have no right to grant such patta in respect of it. Mere description in the rectification deed would not clothe D1 and his child with any right.
Accordingly, the learned counsel would pray for setting aside the judgment and decree of both the Courts below and for decreeing the suit as prayed for.
7. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for D1 would pyramid her arguments, which could succinctly and pithily be set out thus:
(a) Ignoring the valuable right of the minor Kamalakannan, the sale was effected.
(b) In the rectification deed the term ancestral property is found used. Had really the property not been the ancestral property, then there would have been no necessity to specify so, in the rectification deed.
(c) Both the Courts below taking into consideration the fact that the minor's interest has to be protected by the Court, dismissed the unjustifiable claim of the plaintiff, warranting no interference in this appeal.
(d) In the Second Appeal, the Court is concerned only with the substantial questions of law. Both the Courts below appropriately and appositely analysed the evidence and found that the plaintiff had no case and accordingly dismissed the suit, warranting no interference in the Second Appeal.
8. My learned predecessor formulated the following substantial questions of law:
"(1) Whether the Courts below are right in law in holding that minor Kamalakannan has got right in the property while admittedly the property is the self acquired property of the deceased Moorthy, the grandfather of the Minor Kamalakannan, purchased out of the self earnings by Moorthy?
(2) Whether the Courts below are right in law in holding the suit property is ancestral property contrary to the admission of the defendants in D.W.1 and overlooking the material evidence marked as Ex.A2?"
(extracted as such)
9. Both the points are taken together for discussion as they are inter linked and interwoven with each other.
10. At the outset, I would like to fumigate my mind with the concept 'ancestral property'. Certain excerpts from the famous Treatises would run thus:
(i) Mayne's Hindu Law and Usage, 14th Edition at page No. 624.
"292. Ancestral Property The second question is as to what is meant by coparcenary property. The first species of coparcenary property is that which is known as ancestral property. That term, in its technical sense, is applied to property which descends upon one person in such a manner that his male issue acquire certain rights in it as against him. For instance, if a father under Mitakshara law is attempting to dispose of property, we inquire whether it is ancestral property. The answer to this question is that property is ancestral property in the father's hands if it has been inherited by him as unobstructed property, that is not ancestral if it has been inherited by the father as obstructed property. The reason of this distinction is that, in the former case, the father had an effective vested interest in the property, before the inheritance fell in, and therefore his own issue acquired by birth a similar interest in that interest. Hence, when the property actually devolved upon him, he took it subject to the interest they had already acquired. But in the latter case, the father had no such interest in the property, before the descent took place; therefore, when what even occurred, he received the property free of all claims upon it by his issue, and a fortiori, by any other person. Hence, all property which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself in coparcenary with his own male issue. In view of Section 8 of the Hindu Succession Act it has been held the property inherited by the son as Class I heir from his father will be the self acquired property in the hands of the son. When he has no male issue, the sister will inherit the property as separate property. But where he has inherited from a collateral relation, as for instance from a brother, nephew, cousin or uncle, it is not ancestral property in his hands in relation to his male issue; consequently his male issues have no equal rights as coparceners. ........."
(ii) N.R.Raghavachariar's Hindu Law Principles and Precedents Nineth Edition at Page No.213:
"244. Ancestral Property: The term "ancestral property", which is a technical term having a special meaning, does not mean proeprty inherited from any ancestor, male or female, paternal or maternal, near or remote, but only such property as is inherited by a male from father, father's father and father's father's father [Atar v. Thakar, L.R.35 I.A.206: I.L.R.35 Cal.1039: 6 I.C.721: 18 M.L.J.379: 10 Bom.L.R.790; 12 C.W.N.1049 (P.C.); Mohamed Hussain v. Babu Kishva Nandan, 46 L.W.1: 1937 M.W.N.683: (1937) 2 M.L.J.151; Venkateshwarlu v. Raghavalu, 1955 An.W.R.39; Budhraj v. Bhan Zarlal, A.I.R.1954 Ajmer 69.Cf., Naragand Prabhu v. Janardhana Mallan, 1973 Ker.L.R.665]. Such inheritor's son, son's son and son's son's son get an interest in it by birth and can interdict improper alienations by the inheritor, whose position in respect of that property, though it will otherwise be absolute, is reduced, in the presence of such descendants, to that of an owner with restricted rights [Chuttan Lal v. Kallu, I.L.R. 33 All.283: 8 A.L.J.15; 8 I.C.719' Jugmohandas v. Mangaldas, I.L.R. 10 Bom.528; Mahomed Hussain v. Babu Kishva Nandan, supra]. The circumstance that the property has been inherited from one of such three immediate paternal ancestors after the interposition of a life tenure created by that ancestor in his wife's favour does not take away the character of the property as ancestral and the inheritor's lineal male descendants upto the third degree will get an interest in it by birth [Beni Parshad v. Puran Chand, I.L.R. 23 Cal.262; Nanabhai v. Achratbai, I.L.R.12 Bom.122]. Nor does the circumstance that the property, when it was with the ancestor from whom it was inherited was his self-acquired or separate property affect the question [Ram Narain v. Pertum Singh, 11 Beng.L.R.397; Madivalappa v. Subbappa, 39 Bom.L.R.895: AIR 1937 Bom.458; Shyam Behart v. Rameshwar, I.L.R. 20 Pat.904: AIR 1942 Pat.213; Mst.Ram Devi v. Mst.Gyarse, AIR 1949 All.545 (F.B.)]. Besides, it is absolutely immaterial whether the sons were born to the inheritor before or after the inheritance fell in. But if the property is inherited from a paternal ancestor beyond the third degree then the property is not ancestral as against the inheritor's sons, and the inheritor has absolute powers of disposal over it."
11. A plain running of the eye over those excerpts from those two treatises, would exemplify and demonstrate unambiguously and unequivocally, that if a male Hindu owning immovable properties dies leaving behind his wife and children, then his wife and children would be Class I heirs, by virtue of Section 8 read with clause (1) of the Hindu Succession Act, to inherit his property which cannot be described as ancestral property, and they would be inheriting the property of the deceased male Hindu as their absolute property and the grandchildren of the deceased original owner would have directly no right over it.
12. In this connection, the decision of the Hon'ble Apex Court could fruitfully be referred to:
AIR 87 SC 558 [Yudhishter v. Ashok Kumar]
13. A mere perusal of the said decision, would clarify the position that simply because a person happens to be the paternal grand son of an individual, straightaway he would not be entitled to lay claim over the property of his grand father, unless the property happens to be the ancestral property. Without understanding the real purport of the concept 'ancestral property', both the Courts below simply accepted the wrong plea of D1 and dismissed the suit, warranting interference in the Second Appeal.
14. Ex.A2 would demonstrate and display, convey and portray that the immovable property measuring an extent of 8 cents out of 11 cents contemplated in the 'A' schedule was purchased by him vide the sale deed dated 18.10.1994. As such it is crystal clear that it constituted his self acquired property. There is no iota or shred, scintilla or pint, jot or scintilla of evidence to show that the said property was purchased vide the sale deed dated 18.10.1994, from out of the income derived from any joint family nucleus. In such a case, even by phantasmagorical thoughts, it cannot be labelled or described, portrayed and parodied that the said 8 cents of land happened to be the ancestral property. But both the Courts below never addressed themselves to this pertinent point and decided the lis wrongly and erroneously. As such, they committed gross error of law in deciding the matter, warranting interference in the Second Appeal.
15. Relating to the remaining three cents of land in the 'A' scheduled property, Ex.A4 would demonstrate and display that it originally belonged to the Government and it is the Government who conferred right on Moorthy and that itself is indicative of the fact that it is not the ancestral property of Moorthy. Wherefore, there is no gainsaying of the legal position that consequent upon his death, only his Class I heirs under the Hindu Succession Act would be inheriting his 3 cents of land which cannot be described as the ancestral property in the hands of Moorthy. Wherefore, it is glaringly and pellucidly clear that Ex.A2 - the sale deed was valid. Simply because in the rectification deed - Ex.A5 there is reference to the three cents of land as the ancestral property, it cannot be interpreted quite antithetical to what is found exemplified in Ex.A4, the patta.
16. The learned counsel for the plaintiff would place reliance on the following excerpts from the deposition of D.W.1.
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16. No doubt, the plain reading of it would show that D1 herself gave a go bye to her wrong plea in the written statement. Whereas, the learned counsel for the first defendant would try to explain and expound by pointing out that D1 being an illiterate lady who was not worldly wise or in the know of things, could not see the wood for trees, and her deposition should not be given undue importance. Be that as it may, even de hors such deposition, my discussion supra, would highlight and indicate that the suit property as found described in the 'A' schedule of the plaint happened to be the self acquired property of Moorthy and in such a case, both the Courts below were wrong in deciding the lis.
17. The learned counsel for the first defendant would state that the suit itself was bad for want of non joinder of Kamalakannan as one of the defendants, for which the learned counsel for the plaintiff would submit that as Kamalakannan was eo nomine party in the sale deed and he was represented by his father, such a measure was only by way of ex abundanti cautela. Simply because by way of caution the minor was added and that too because the purchasers are queasy in demanding for such inclusion, that would not clothe Kamalakannan with any right which he infact did not possess. However, in view of the plaintiff having proved her case positively, the suit cannot be dismissed on the ground that Kamalakannan was not added eo nomine in the party array.
18. The fact remains that admittedly D1 is in possession of the 'B' scheduled property and the 'C' scheduled property is in possession of the plaintiff and he apprehended threat to his peaceful possession and enjoyment of the 'C' scheduled property. Hence the suit has to be decreed.
19. On balance, the substantial questions of law are answered as under:
(a) The substantial question of law No.1 is decided to the effect that both the Courts were wrong in holding that minor Kamalakannan has got right in the property and the fact remains that the 'A' scheduled property is the self acquired property of Moorthy and not the ancestral property, over which D1's son, Kamalakannan had no right.
(b) The substantial question of law No.2 is decided to the effect that the Courts below were wrong in holding that the suit property is the ancestral property contrary to the admission by the first defendant and also in view of Exs.A2, A4 and A5.
Accordingly the judgment and decree of both the Courts below are set aside and the suit is decreed as prayed for. No costs.
17.09.2012 Index : Yes/No Internet: Yes/No To
1. The Additional Subordinate Judge, Chengalpattu.
2. The District Munsif cum Judicial Magistrate, Thirukallukundram.
G.RAJASURIA, J., gms S.A.No.453 of 2006 17.09.2012